How can courts protect the elderly?

Seventy-one million.

That number serves as the driving force behind efforts in South Carolina and across the nation to improve the way the courts deal with elderly abuse.

It is the estimate of how many Americans will be 65 or older by the year 2030 -- double the number today. And that rapid increase starts next year when the first baby boomers turn 65.

In South Carolina, the increase of people 65 and older is expected to exceed the national rate. By 2030, the state will have 1,134,000 such citizens.

This senior tsunami comes as no shock. Numerous studies and federal reports have warned for years that, as the baby boom ages, the number of elderly who are subjected to neglect, abuse and financial exploitation will surge. Despite the warnings, little has been accomplished in most states and nationally to remedy the failings of courts set up to protect the incapacitated elderly.

Just in September, the General Accounting Office, the investigative arm of Congress, released a study revealing that "there continue to be instances where some guardians have taken advantage of the elderly people they are supposed to protect." Lack of training and monitoring contribute to such failings, the report said.

The study said that similar warnings from the GAO in a 2004 report had resulted in only sporadic improvements in a few states. Lack of money remains one of the big problems for a court that's generally at the lower end of the feeding trough.

In Charleston, Irvin G. Condon, chief judge of the Charleston County Probate Court, has been active locally, statewide and nationally in efforts to deal with elderly abuse, establish uniform court procedures and improve guardianships and conservatorships. He is the immediate past president of the National College of Probate Judges and president-elect of the National Guardianship Association.

But, Condon said, lack of money ties his hands. Charleston County provides generous funding for the probate court, but coming up with county or state money to substantially change the way the court pays for lawyers, guardians and conservators is not in the cards for now. As it is, he said, the court has no choice but to bill the estates of the incapacitated for their care and protection.

Condon hopes to draw on his experience as president of the Congress of State Drug Court Associations, where he helped the drug court movement get some federal funding. "I want to do the same for the movement to advance good guardianship to protect our seniors," he said. "You've got to have money, and the easiest way to do it nationally is with federal money."

Growing fee concern

Jean Toal, Chief Justice of the South Carolina Supreme Court, which oversees the courts, said she too is concerned with how the courts deal with the elderly in general and the fee issue in particular. She appointed a task force last year to evaluate the impact of the elderly on the courts and what the court needs to do to meet their needs. The state's Bar Association also is considering recommending revisions to the state's probate code.

Toal's task force recommended earlier this year that the Probate Courts use volunteers to check on vulnerable elderly persons and serve as guardians and conservators, a move that, if enacted, would dramatically cut fees billed to the estates of the elderly. The task force also called for possible creation of a "statewide public guardianship system" to give legal assistance to the poor and to work with existing agencies to head off Probate Court litigation through counseling and mediation.

In addition, the task force said Probate Courts need to provide better oversight of guardianships and conservatorships, especially in high-risk situations, the very type brought to the Charleston County court by the city of Charleston's Elder Support office.

In high-risk situations, Charleston County's Probate Court usually relies on Family Services, a local nonprofit, to serve as conservator. The nonprofit charges a varying flat fee of 4 or 5 percent a year for most of the cases. The vast bulk involve estates of less than $50,000, ones that for-profit companies usually won't handle, or that consist of just month-to-month social security benefits.

David Geer, Family Service's executive director, said the nonprofit acts as conservator in cases that most for-profit companies would not because the estates are too small. He said Family Services rates are slightly higher than those of for-profits, but might come to less if for-profit handling fees and other charges are added in.

Caprice Atterbury, Family Services' chief financial officer, said the nonprofit also tries to cut costs by keeping the incapacitated elderly in their homes. Houses go to sale only when they become a liability to the person, or the person needs money to live on, she said. In the more than 500 cases the agency has handled over the past several years, just 27 homes have been sold.

Because many of the homes sold have been neglected, Family Services tends to use real estate firms and agents who are able to deal with cleanup and some repairs, Atterbury said. She said the nonprofit tries to use various companies or agents to avoid any appearance of favoritism.

However, in one recent case involving a home on Charleston's historic Wentworth Street, Family Services initially prepared to list the house with a company where an agent is a distant relative of Geer's. When contacted by The Post and Courier, Geer said the broker was married years ago to his second cousin, who has since died. He said he didn't think that was a conflict of interest, and initially went with her real estate company because of its experience selling downtown Charleston houses. But, he said, because the issue came up, "we'll shut it down" and give the listing to another company, which he did.

The fees Family Services charges for its work as a conservator were worked out with the Probate Court, and about 60 percent of the nonprofit's incapacitated elderly clients pay anywhere from nothing to less than $1,000 a year, Atterbury said.

Most of Family Services cases come from the Lowcountry, but the nonprofit also works statewide.

Until recently, guardian fees in Charleston County were set by individual guardians, some as high as $140 an hour, and routinely approved by the court. That remains the case in most South Carolina counties.

Brenda K. Uekert, principal court research consultant for the National Center on State Courts in Williamsburg, Va,, said determining appropriate fee rates in adult incapacity cases is a problem for courts across the country.

But, she said, courts in Florida have come up with a promising system. There, the court has set guardian fees on a scale based on experience. And fees for certain services by guardians, such as bill-paying, shopping and clerical work, were capped. In Charleston County, Condon recently adopted a similar system.

Money makes difference

South Carolina's court system handles fees in opposite ways for two groups of vulnerable people, the elderly and children.

The elderly must pay out of pocket for the fees charged by lawyers, guardians and conservators.

When children are neglected or sexually or physically abused by their parents, the state covers the tab.

For the children, the court appoints unpaid volunteers as guardians ad litem to protect their legal interests. And when children are removed from their family for protection, a foster parent can be named to act as guardian. Foster parents receive no pay from state or local government, just a few hundred dollars a month to provide for a child's needs.

So why does the state have two different systems to pay for the protection of abused children and abused elderly persons?

The answer -- money.

Children rarely possess anything of value, but incapacitated adults can be worth hundreds of thousands of dollars, money that can be tapped to pay for their care and fill the pockets of lawyers and guardians.

Lawyers have long objected to working for no pay when appointed as guardians ad litem in child abuse cases. As a result, Toal issued a mandate effective in July removing attorneys from that responsibility.

Now, courts dealing with neglected or abused children rely on a system of unpaid, lay volunteers trained as guardians ad litem to protect them.

Lois Richter, local coordinator for the volunteers, said she would "absolutely, love to see our program expanded" to cover incapacitated elderly adults. She believes that volunteer guardians would be better for the elderly than paid ones. Volunteers would have "the best interests of the elderly instead of the checkbook," she said.

She and her staff of four, who are financed as a state agency through the governor's office, oversee 179 volunteer guardians in Charleston County and 90 in Berkeley County. The guardians receive 30 hours of training and are limited to no more than five cases at a time. They can work just one if they wish.

In addition to lower costs, Richter said, her program provides regular oversight to make sure the volunteer guardians do what they are supposed to do.

Condon has taken several steps to improve protection for the estates of the incapacitated elders. He requires that conservators be bonded so that if they do something improper with a ward's money, it can be recovered from the bonding company. And Condon requires that conservators file annual accountings with the court, prohibits withdrawals from wards' accounts without court approval and requires proof of deposits and bank verification of accounts.

But with guardians, Condon concedes oversight isn't what it should be. Condon uses law student volunteers to review and track cases, and he has pushed for guardians to gain certification with the Center for Guardianships. He points out that the Charleston area now has 11 of the state's 13 certified guardians.

Still, the court has no systematic way to check on guardians other than court-required annual reports. And those reports are written by the guardians themselves.